Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [1998] FCA 419

FEDERAL COURT OF AUSTRALIA

EVIDENCE - interlocutory proceedings - costs assessment - client legal privilege - loss of privilege pursuant to s 122 Evidence Act 1995 (Cth) - whether substance of confidential communication was disclosed. Evidence Act 1995 (Cth) - ss 119, 122 The Adelaide Steamship Co Ltd & Anor v Janis Gunars Spalvins & Ors (Full Court, Federal Court of Australia,, 2 March 1998, unreported) - cited TRUTH ABOUT MOTORWAYS PTY LIMITED -v- MACQUARIE INFRASTRUCTURE MANAGEMENT LIMITED NG 833 of 1997

FOSTER J 2 APRIL 1998 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 833 of 1997

BETWEEN: truth about motorways pty limited

Applicant

AND: macquarie infrastructure management limited

Respondent

JUDGE: FOSTER J

DATE OF ORDER: 2 APRIL 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 833 of 1997

BETWEEN: truth about motorways pty limited

Applicant

AND: macquarie infrastructure management limited

Respondent

JUDGE: FOSTER J

DATE: 2 APRIL 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (Extempore) I have been asked to decide a question of waiver of client legal privilege. That question has to be decided in accordance with the provisions of the Evidence Act 1995 (Cth) ("the Act"). The question arises in relation to two affidavits which have been filed, the deponent in each case being Ann Christina Sexton, a legal cost consultant. The affidavits have been filed by the respondent in relation to an application for security for costs. The affidavits have not been read before me in full. In summary, insofar as the affidavits are related to costs allegedly incurred by the respondent to date, this material has not been read in relation to this litigation, but the portions relating to costs likely to be incurred in the future have been read. Specifically, paragraphs 12 and 13 of the affidavit of 5 March 1998 set out the opinion of Ms Sexton as to costs and disbursements in relation to work to be performed in the future by the respondent's solicitors and counsel up until the hearing, but they do not include those costs and disbursements which have been incurred to date. Application is made to the Court on behalf of the applicant, in effect, for access to the evidence upon which the opinion of Ms Sexton, set out in those paragraphs, was based. The application is made on the basis that documentary or oral information given to Ms Sexton for the purpose of producing paragraphs 12 and 13, emanating, as it must have, from the respondent solicitor who obviously engaged her for the purpose, is subject to a claim for client legal privilege. The principles in relation to client legal privilege are now found in s 119 of the Act. Those principles, I might say, seem to reproduce the principles of the common law with the exception that a "dominant purpose" has now been substituted for the "sole purpose" which hitherto applied by reason of the decisions of the High Court. The question of waiver which is posed by s 122 of the Act can be compendiously stated in terms of whether that privilege has been waived by the conduct of the solicitor in question in relation to his retainer of Ms Sexton. The question, put more narrowly, is whether, as a result of what has occurred, either as it appears expressly from the material before me, or by way of inference, the deponent to the affidavit has knowingly and voluntarily disclosed in the affidavit the substance of the information that was given to her. The affidavit of 5 March 1998 itself refers to conversations that occurred on 23 February 1998, when the deponent attended the offices of the respondent's solicitor and spoke to a Mr Stewart, an employed solicitor who has the carriage of this matter in that office. Her subsequent affidavit of 19 March 1998 refers in more detail to that fact. It also refers to certain conversations that took place, one of which was to the effect that what she was seeing was confidential. Ms Sexton deposes to the fact that she was shown a certain file note, described in paragraph 7 of the affidavit, and also the first page of observations to counsel which had been prepared by the solicitor, which is referred to in paragraph 8. Those particular documents have in fact been produced on call during the course of the argument before me, and have been made available, and they could be regarded as now passing out of contention. Any other documents relevant to the information imparted to Ms Sexton by the solicitor, have been called for. There has been no response to that call. Plainly, I must approach this matter on the basis that she saw two documents which have, in fact, now been produced and that she was also the recipient of oral information. The question is whether that oral information provided to her can properly be the subject of disclosure, either by way of the solicitor who imparted it giving the information to the Court, or on the basis that the recipient of the information, Ms Sexton, be obliged to answer questions as to what it was. The answer depends, as I have said, on whether her references in the two affidavits bring the matter within the purview of s 122. This really amounts to whether she has, in effect, broadcast in those affidavits, to the world at large, the substance of the evidence allegedly disclosed to her. I have had regard in determining this matter to the case of The Adelaide Steamship Co Ltd v Janis Gunars Spalvins & Ors (Full Court, Federal Court of Australia, 2 March 1998, unreported), to which I have been referred, and also to other cases. The matter is not to be determined on the basis of fairness, a concept introduced under the common law, but simply on a quantitative basis, as the cases make clear. In other words, I have to decide whether this evidence in the affidavit indicates to me that there has been a publication of the substance of the information given to Ms Sexton such as to bring into operation the waiver as it is now constituted by s 122. I listened attentively to all arguments that have been put to me on this basis. In the first instance, I am not able to derive from the wording of paragraphs 12 and 13 of the affidavit of 5 March 1998, any indication that Ms Sexton was provided with such specific information that I should derive from it some concept of the substance of what she was told. It must be borne in mind that the deponent to this affidavit is a highly qualified cost consultant who has had very considerable experience in the perusing of bills of costs prepared by solicitors for work done in the Federal Court. I see nothing in these paragraphs which would indicate to me that she has not simply brought to bear material based upon her own experience, necessary for her to arrive at the computations she has set forth in that affidavit. I am certainly not persuaded that I should find in the wording of paragraphs 12 and 13, an indication of any "substance of the evidence", as it is referred to in s 122. The same applies to the other paragraphs to which I have been referred in that affidavit and in the later affidavit of 19 March. I find nothing in those paragraphs which indicates a waiver such as might be occasioned by her making available, through an affidavit filed in this Court, a voluntary disclosure of the substance of the information given to her. As an estimate of a quantitative nature, I can see nothing there which indicates to me that there was a sufficient substantial disclosure of that information such as to constitute waiver. I therefore reject the submission based upon that doctrine and dismiss the application. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.